VICTORIA -While the B.C. Liberals seem bent on appealing the latest defeat in their long-running war with the B.C. Teachers' Federation, this week's withering judgment from B.C. Supreme Court does suggest an alternative.

The option is some form of mediation. Not a pipe dream, for it has already headed off one breakdown between the government and the union — a development well documented in the court decision.

Justice Susan Griffin, in one of her multiple findings of bad faith on the part of the Liberals, concluded that the province went into the last round of bargaining with the union in 2011 intending to provoke a strike.

Still, there was no strike. Why?

The answer resides in the role played by Charles Jago, the former university president appointed by the Liberals in early 2012 to mediate the dispute.

The union fought the appointment, arguing Jago was unqualified as a mediator and that his earlier actions had given rise to an "apprehension of bias" in favour of the government.

The government was seeking public sector settlements under a "net zero" mandate, meaning that any additional costs in wages and benefits would have to be offset by savings elsewhere in the contract.

But in the case of teachers, the Liberals were also pressing for significant contract concessions, against the backdrop of threat of legislated settlement if the BCTF didn't come to terms voluntarily.

Jago privately cautioned the government that the latter was going too far. Enough that teachers, like other public sector workers, would have to take "net zero" for two years. Expecting them to make contract concessions above and beyond would amount to "less than zero."

Having established parameters for both sides, Jago was able to preside over a settlement that had the government backing away from the demand for concessions and the union accepting net zero.

Though not happy with the lack of progress on compensation, BCTF leader Susan Lambert had the good grace to credit Jago for playing a "pivotal role" in the settlement and for being particularly "respectful" of teachers.

Still, the BCTF revived its concerns about the Jago appointment and the net zero mandate when it returned to court last year in its fight against the government's stripping of the teacher's contract by legislation.

But even as Judge Griffin sided with the union on the contract stripping, she upheld the government's right to set hold-the-line mandates for public sector bargaining. "The government has a role and responsibility in respect of the education system that entitles it to establish some fiscal and policy parameters around the collective bargaining ... so long as there can still be room for movement within those parameters."

As for the Jago appointment: "While the government by its legislation did impose narrow terms on the mediation process ... I am unable to conclude on the evidence that the imposed mediation process by itself violated the teachers' rights."

Nearing the end of the 150-page decision, the judge addressed government concerns about any future impasse in talks with the BCTF: "A number of options remain available to government that are consistent with respecting the (constitutional) rights of teachers, including mediation and arbitration. "

The latter is an option that the Liberals ought to be considering as they mull the potentially expensive fallout from the judge's decision, which restored class sizes and staffing levels to where they stood 12 years ago.

Instead, they are leaning toward an appeal, believing they can secure a more sympathetic hearing at a higher court. But they may be wrong about that.

After reading the Griffin decision through for a second time, I was struck by the larger point she made about necessary limitations on the powers of a government in full command of its legislative majority.

Government has so many powers over collective bargaining — the ability to determine mandates, impose spending limits, establish regulations, move goalposts — that when it finally does sit down at the table, it must negotiate in good faith and with clean hands.

"Any student of history or human nature recognizes that a natural tendency and desire of any political force is to attempt to consolidate and gather more power and to seek to diminish any restraint on that power," she wrote.

"A democratic system has institutional checks to counter that tendency and to safeguard against tyranny ... Democratic institutions and democratic philosophy are at their root based on a belief that society should be structured in a way that is fair."

Having found the Liberals guilty of unfair conduct — based in large measure on confidential notes kept by a key government negotiator — she in effect threw the book at them.

A higher court, looking at the same documentation as she did, could readily reach the same conclusion, in which case the Liberals would be back at the table with an even more feeble hand.

The Liberals will almost certainly move to preserve their option to appeal the decision before the 30-day filing deadline expires. But before they actually proceed to court, they should also appoint an independent mediator to explore the options and advise the public on what it would to cost to settle this dispute once and for all.

Comments

We encourage all readers to share their views on our articles and blog posts. We are committed to maintaining a lively but civil forum for discussion, so we ask you to avoid personal attacks, and please keep your comments relevant and respectful. If you encounter a comment that is abusive, click the "X" in the upper right corner of the comment box to report spam or abuse. We are using Facebook commenting. Visit our FAQ page for more information.

Share

Vaughn Palmer: On education, it’s time B.C. Liberals stepped back from brink

Video

Today's Headline Videos

Best of Postmedia

To steel himself for the year-long journey that began Wednesday, Jonathan Pitre has been going over the hard calculus that underpins his decision to pursue a high-risk, high-reward treatment in Minnesota

When he woke up in tears the morning after he had cried himself to sleep, Rohit Saxena knew what he had to do. Leaving his wife, Lesley, asleep in bed, Rohit went downstairs, opened his laptop and began to write. “They say your kids are your hearts outside your body,” he wrote. “I’ll always be […]

Almost Done!

Postmedia wants to improve your reading experience as well as share the best deals and promotions from our advertisers with you. The information below will be used to optimize the content and make ads across the network more relevant to you. You can always change the information you share with us by editing your profile.

By clicking "Create Account", I hearby grant permission to Postmedia to use my account information to create my account.

I also accept and agree to be bound by Postmedia's Terms and Conditions with respect to my use of the Site and I have read and understand Postmedia's Privacy Statement. I consent to the collection, use, maintenance, and disclosure of my information in accordance with the Postmedia's Privacy Policy.

Postmedia wants to improve your reading experience as well as share the best deals and promotions from our advertisers with you. The information below will be used to optimize the content and make ads across the network more relevant to you. You can always change the information you share with us by editing your profile.

By clicking "Create Account", I hearby grant permission to Postmedia to use my account information to create my account.

I also accept and agree to be bound by Postmedia's Terms and Conditions with respect to my use of the Site and I have read and understand Postmedia's Privacy Statement. I consent to the collection, use, maintenance, and disclosure of my information in accordance with the Postmedia's Privacy Policy.